### J-S40001-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P.65.37 J.K.A., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v. M.B.Y., Appellee No. 2298 MDA 2013

Appeal from the Order Dated November 27, 2013 In the Court of Common Pleas of Lancaster County Domestic Relations at No(s): 2005-00046

PACSES NO. 152103633 BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J. MEMORANDUM BY BENDER, P.J.E.:FILED SEPTEMBER 23, 2014 J.K.A. (Mother) appeals from the order dated November 27, 2013, and entered on December 6, 2013, that directed M.B.Y. (Father) to pay to Mother support for the parties’ child, M.B.A. (born inJuly of 2001). After review, we affirm. Mother’s stated issue in her brief reads as follows: “Didthe lower court err in determining [Father’s] earning capacity?” Mother’s brief at 4. Specifically, her arguments are directed at the trial court’s alleged errors in “calculating Father’s income when [the court] did not take into account [Father’s] failure to mitigate lost income, abandonment of the child and income derived from all sources.” Id.at 10. When addressing such issues, we are guided by the following:

### J-S40001-14

- 2 - [T]his Court may only reverse the trial court's determination where the order cannot be sustained on any valid ground. We will not interfere with the broad discretion afforded the trial court absent an abuse of the discretion or insufficient evidence to sustain the support order. An abuse of discretion is not merely an error of judgment; if, in reaching a conclusion, the court overrides or misapplies the law, or the judgment exercised is shown by the record to be either manifestly unreasonable or the product of partiality, prejudice, bias or ill will, discretion has been abused. Samii v. Samii, 847 A.2d 691, 694 (Pa. Super. 2004) (citations omitted). Furthermore, this Court: must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, this Court must defer to the trial judge who presided over the proceedings and thus viewed the witnesses first hand. Hogrelius v. Martin, 950 A.2d 345, 348 (Pa. Super. 2008). “When the trial court sits as fact finder, the weight to be assigned the testimony of the witnesses is within its exclusive province, as are credibility determinations, [and] thecourt is free to choose to believe all, part, or none of the evidence presented.” Stokes v. Gary Barbera Enterprises, Inc., 783 A.2d 296, 297 (Pa. Super. 2001), appeal denied, 568 Pa. 723, 797 A.2d 915 (Pa. 2002). “[T]his Court is not free tousurp the trial court's duty as the finder of fact.” Isralsky v. Isralsky, 824 A.2d 1178, 1190 (Pa. Super. 2003) (quoting Nemoto v. Nemoto, 423 Pa. Super. 269, 620 A.2d 1216, 1219 (Pa. Super. 1993)). Mackay v. Mackay, 984 A.2d 529, 533 (Pa. Super. 2009). We have reviewed the certified record, the briefs of the parties, the applicable law, and the thorough opinion authored bythe Honorable Leslie

### J-S40001-14

- 3 -

Gorbey of the Court of Common Pleas of Lancaster County, dated February 25, 2014. We conclude that Judge Gorbey’s well-reasoned opinion properly disposes of the issue(s) that have been raised by Mother.Accordingly, we adopt Judge Gorbey’s opinion as our own and affirm the support order on that basis. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary
Date: 9/23/2014Circulated 08/29/2014 12:20 PM

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA 

# J.j(. 

## tj-.
. DOMESTIC RELATIONS DIVISION
Plaintiff Docket No. 

### 2005-00046 vs. 

### i'I\
.

## 13'
.

# y.

...... PACSES Case No.

### 1521036i~ <;:3 

## l.::;
:-.

..., Jr' ".:..::1" co 

### rn**.~ ~**  -'"\ SUPER. CT. NO.: 

### 2298 MDA 

### 2Q13**~ ;l~**  ;:: 01 '-'.- S.C: 

## 8 :;...--.. '.;J Defendant

--:., 

### :::;: :/;

. BY: LESLIE GORBEY, J. ORDERSU'R APPEAL

" 

### .- Procedural history**;J.~.It**

## •. This support matter was Initiated on January 

### 6, 2005 when Plaintiff

### tll

__ lIInn. 

# '.
. . . .**m.~·Y**


### ,. 7 (Mother) filed a supp.ort complaint against Defendant

__ ••••



## .**m,~.~...** (Father) fQr support of one child, , born '/In July. 

### 2001. Overthe intervening years, Mother filed a number ofpetitions for modification of support and the order was either modified or not modified by the court pursuant to the information presented. The instant Order resulted from the filing ofa petition to modify On July 

### 19, 2013. A conference on the instant petition was held August 

### 15, 2013 and the recommended Orderwas issued by the court on September 

### 12, 2013, directing that Defendant was to pay 

### $390.73 monthly in child support. The order contained an upward deviation. Mother appealed this decision and a hearing de novo was held before the Court on November 

### 27,2013. The Court entered a two tier order sustaining mother's appeal, directing that the recommended order would be in effect through December 5, 

### 2013. On December 

### 6, 2013, a new order would become effective, obligating 

# 8 1Circulated 08/29/2014 12:20 PM

Defendant to pay $309.23 monthly for the support of •••••• This order was calculated pursuant to the Guidelines and was based on earning capacities of 

### $8.25/hr for 25 hours per week for Plaintiff ($790.54 monthly net) and income for the defendant of $400 per week gross ($1301.67 monthly !jet.) On December 26, 2013, Mother filed an appeal to the Pennsylvania Superior Court, pursuant to which appeal this opinion sur appeal is being prepared.

Factual history 

## ('11:5,11. Mother and Father are the parents'of , age 13. (N:T. 8) Father exercises none of his custodial rights to the child, and hasn't seen him in three years. (N.T. 11) Mother also has two other YOl,lnger children, but they have a different father, who pays child support to Mother. (N.T. 10) At the time ofthe hearing, Mother had no employment income. She had last been employed in 2007 at J. C. Penney as a salesperson for a period offive to six months, making an hourly wage of$8.25. (N.T. 12). She left thejob because she had no one to care for heryoungest two children. She has recently been looking forwork, because her children are now all in school. She is a high school graduate. (N.T. 9-11) Mother agreed that she should be given an earning capacity of$8.25 per hour. (N.T. 15) Father worked for Jack Trier Moving for eight years at a seasonal job, getting unemployment income in the off-season. (N.T. 23) Extrapolating over a year, he made $11.75 per hour, averaging thirty hours perweek when he worked. He left the position in March of 2013 because new management had taken away certain benefits, reduced his insurance, and had increased the amount of travel he would have to do, but offered 

# (3) 2Circulated 08/29/2014 12:20 PM

him no increase in pay. (N.T. 20) Between March of 2013 and the conference, he engaged in three episodes oftemporary eniployment cleaning debris, for which he received between $600 and $700. (N.T. 24) Since October 21,2013, he has been the sole employee of George Grove Delivery Service, delivering new furniture. (N.T. 21) He works between thirty and forty hours per week for $10 per hour. (N.T. 19) He did not go beyondtenth grade. He has recently married. (N.T. 25, 29) Issue Whether a child support figure derived from the Guidelines is appropriate in a situation where Father has quit his job paying $11.75 perhourfor an average of thirty h.ours per week and repl,aced 

### it with anotherjob paying $10 per hour for thirty to forty hours per week and when Father has spent no custodial time whatsoever with the child for a period ofthree years. Analysis As a general rule, child support Is to be calculated pursuant to the Support Guidelines authorized by statute and promulgated as a Rule of Civil Procedure by the Pennsylvania Supreme Court. 23 Pa.C.SA 4322(a); Pa.R.C.P. 1910.16. There is a presumption that the amount is correct, but that presumptlon can be rebutted, alloWing

.the Court to deviate from the Guideline amount if it finds that the application ofthe Guidelines would be inappropriate or unjust in a particular case. 23 Pa.C.SA 4322(b); Pa. R.C.P. 1910.16-5. If the obligor has employment which provides him or her with a regular monthly income, the support obligation can be determined according to the applicable State Guidelines. Ifthere is no regular income, then the Court is charged



### 3Circulated 08/29/2014 12:20 PM



### with the task of determining a reasQnable earning capacity fDr the unemplQyed Dr 

### underemplDyed indIvidual

..An earning capacity is defined "nQt as an amDunt which the· persDn cDuld theoretically earn, but thai amDunt which the persQn cDuld realistically earn underthe circumstances, cDnsidering his Dr her age, health, mental and physkal cDndition and training." 

### Strawn v. 

### Strawn, 664 A.2d 129 (Pa. Super. 1995) At the time .of

### the hearing in this malter, Father was emplQyed as a delivery persDn 

### .IDr a cQmparJY which delivered new furniture tQ consumers. H,is rate .of

### pay was $10.00·p'er hour Dr $400 per week grQSs. He had been making $11.75 per hQur at Jack TrierMDving which he left in March .of

### 2013 when new management changed his benefits and his job descriptiQn tQ his disadvantage. Between March .of

### 2013 and the' cQnference, he had made additiDnal 

### mDneyin the amDunt .of $600 tQ $700 in return fQr three instances .ofcleaning up debris. Father has nQ educatiDn past tenth grade. MDther's 1925(b) statement cDntains a number .of

### cDmplaints conceming Father's emplDyment. She complains first that he left his emplDyment at which he was making a higherwage and failed tD 

### take an apprepriate replacementjeb. Mether alse believes that Father ShDUld be wDrking mere heurs aweek, should have mitigated his less .of income caused by his voluntary quit and did net make any reasDnable effert te find werk. The CQurt believes that Father's quit was reasQnable in light .of a disadvantageeus change te his benefits and his duties. At Trier, Fatherwas wDrking an average .of 30 h.ours per week when he is w.orking. At his currentj.ob, he is w.orking between 30 and 40 hrs aweek. Additi.onally, he d.oes n.ot get laid .off in the Dff-seasen, The C.ourt has directly addressed M.other's pr.oblem c.oncerning h.ours in assessing Father fer the highpart .of his h.ourly estimate
- 40 hDUrs per week-- believing it tQ be 

# o 4
..Circulated 08/29/2014 12:20 PM

reasonable for Father to have ac'cepted a job at a lower hourly rate for more hours rather than continue with unemployment until he finds ajob that will pay him the money that Mother believes to be appropriate. Therefore, the Court does not accept Mother's arguments; Father quite clearly sought a newjob and through that search mitigated any loss occasioned by the loss of his Trier income. The Court thus finds that it Is unnecessary to attribute a higher earning capacity to Father as Mother suggests and finds that Father's monthly income is what he now earns at Grove 

### Deliveryfor a forty



## . . -. .".. .' . hourweek. Mother complains next that the Court failed to consider that Father takes no lI1;B,)4•. custodial time 

### with' I 

## Sfthereby increasing herfinancial obligation for the child. The Explanatory Comments·to Pennsylvania Rule of Civil Procedure 1910.6-4 assert that ifthe obligor spends little or no time with the child and therefore incurs no expenditures that such time would entail, the Court should consider an upward deviation in support. The conference officer did indeed recommend an upward deviation. The Court has considered this possibility and has decided that no upward deviation is to be included

.. Mother is receiving support for her othertwo children and is actively looking for work which will provide her with additional income. While Father's obligation is calculated using a forty hourwork week, Father's testimony is that he worked between thirty and forty hours. Should he experience a shorter week than forty hours, his net income would be reduced for that week, and an upward deviation would be unjust. There are no othervariables in the matter which commend this idea to the Court. The Guideline figure will therefore be utilized as the appropriate amount.Circulated 08/29/2014 12:20 PM

Mother also points out, with somejustification, that Father's income should

... include all moneys he received from all sources other than his employment. The Court understands that she is referring to the $600 to $700 that Father earned from a temporaryjob when he was unemployed. The Court agrees with Mother in theory, but

.points out that for the purposes ofthis de.cision; those earnings, when extrapolated over

his entire seven months of unemploymentamounts to at most approximately $100 per month, a' 

### de minimus amount in this support calculation,. That being said, however, the Court's order under appeal permitted the highe'r support obligation setout in the recommended order to remain in effect from July 19, 2013 until December 6,2013, thus giving Mother an additional $81.50 per month for more than four months, effectively providing her with the major part of Father's.extra income. Conclusion Based on the above, the Court dismisses Mother's appeal and affirms al\ prOVisions of its order of November 27, 2013,

DATED: February 24,2014 ATTEST: COPIES TO: Michael V. Marinaro, Esquire Lorraine Russell Hagy, Esquire

# BYTH~ LESLIE GORBEY, JUDGE